[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 7, 2011
No. 09-16146
JOHN LEY
________________________
CLERK
D. C. Docket No. 09-01537-CV-2-RBP,
BKCY No.07-03515-TBB-13
IN RE:
TERRY D. JACKS,
SANDRA C. JACKS,
Debtors.
________________________________________________________________
TERRY D. JACKS,
SANDRA C. JACKS,
Plaintiffs-Appellants,
versus
WELLS FARGO BANK, N.A.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(June 7, 2011)
Before MARTIN, COX and BLACK, Circuit Judges.
BLACK, Circuit Judge:
Plaintiff-Appellants Terry and Sandra Jacks filed this purported class action
as an adversary proceeding before the bankruptcy court. Their amended complaint
alleged their mortgage lender, Wells Fargo Bank, N.A., violated various
provisions of the Bankruptcy Code and Bankruptcy Rules by failing to disclose
certain fees on the proof of claim it filed in the Jacks’ Chapter 13 bankruptcy case.
Prior to considering class certification, the bankruptcy court chose to address the
merits of the Jacks’ individual claims. Following a hearing in which it made
findings of fact and conclusions of law, the bankruptcy court granted summary
judgment in favor of Wells Fargo on all counts. The Jacks appealed this decision
to the district court, which affirmed the bankruptcy court’s decision.
We affirm the grant of summary judgment in Wells Fargo’s favor as to all
claims except those based on actions that Wells Fargo may take after the Jacks’
bankruptcy case is dismissed or discharged. We determine to the extent the Jacks’
claims are based on events that may take place later, they are not ripe, and we
dismiss them.
I. BACKGROUND
2
In November 2004, Terry and Sandra Jacks obtained a home mortgage from
Washington Mutual Bank. In March 2007, the mortgage was assigned to Wells
Fargo. Later that year, on August 8, 2007, the Jacks filed a voluntary petition for
Chapter 13 bankruptcy in the U.S. Bankruptcy Court for the Northern District of
Alabama. The petition disclosed that Wells Fargo held a
secured claim as a mortgage on the Jacks’ home.
On September 6, 2007, Wells Fargo filed a proof of claim asserting a
secured claim of $162,205.57. Exhibit A to the proof of claim was an “Itemization
of Claim and Summary of Supporting Documents.” This exhibit listed the Jacks’
total debt of $162,205.57.1 It did not list any pre-petition attorney fees or costs,
but stated at the end of the itemization section:
Please be advised that reasonable fees and costs for the
review of the bankruptcy pleadings, review of client
information, preparation and filing of the Proof of Claim
will be charged to the lender/servicer for post-petition
services rendered subsequent to the filing of this
bankruptcy matter. Further, note that future fees and costs
for bankruptcy related services are expected to accrue
throughout the life of this bankruptcy case, and will be
charged to the lender/servicer. If such fees and costs or
charges are not paid through the bankruptcy, the lender
reserves the right, at the lender’s discretion, to seek future
1
The proof of claim also asserted an arrearage in the amount of $1,191.83. According to
Wells Fargo, the arrearage was claimed in error, and the Jacks’ monthly mortgage payments were
current when the proof of claim was filed.
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reimbursement for the fees, costs and charges related to
services rendered and expenses incurred pursuant to the
terms provided for in the underlying security instrument,
the bankruptcy code and other applicable law.
After the proof of claim was filed, Wells Fargo’s outside law firm submitted
to Wells Fargo an invoice documenting $310 in fees and expenses associated with
preparing and filing the proof of claim in the Jacks’ case.
On October 17, 2007, the Jacks filed an Amended Chapter 13 Plan. The
plan called for the Jacks to continue to make their regular monthly payment
directly to Wells Fargo. It did not list any arrearage to be paid by the trustee. The
plan also noted, “Debtors also may have a potential lawsuit against Wells Fargo
Home Mortgage for violations of the automatic stay, § 506 and Rule 2016 for
assessing post-petition fees and costs which were undisclosed on the proof of
claim and/or may have a potential declaratory judgment action regarding language
used in the proof of claim as being unnecessary or deceptive. The Debtors hereby
wish to preserve said causes of action in their bankruptcy case.” The bankruptcy
judge entered a confirmation order on December 28, 2007.
On July 29, 2008, the Jacks filed a complaint against Wells Fargo in the
U.S. Bankruptcy Court for the Northern District of Alabama. The Jacks, claiming
to act on behalf of themselves and a class of similarly situated mortgagors, alleged
4
Wells Fargo violated several provisions of the Bankruptcy Code and failed to
comply with the Federal Rules of Bankruptcy Procedure by improperly
“charg[ing], assess[ing], impos[ing] and/or collect[ing] impermissible fees” on the
plaintiffs’ and similarly situated mortgagors’ accounts. In the Jacks’ case, they
alleged Wells Fargo had “charged or assessed” $310 in bankruptcy-related fees to
the Jacks’ account without disclosing these fees in the proof of claim or seeking
approval from the bankruptcy court. The complaint further alleged Wells Fargo
was “attempting to collect this amount or will collect this amount during the
pendency of the case, once the Debtors have received their discharge, or once they
are dismissed from the case, whichever occurs first.”
The $310 in fees had been recorded on the Jacks’ “Customer Account
Activity Statement” as two charges in the amount of $150 each and one charge for
$10 posted on October 25, 2007. A litigation representative for Wells Fargo
explained in her deposition testimony that the Customer Account Activity
Statement tracks payments and disbursements related to the servicing of a loan,
including bankruptcy-related fees and expenses. It may include fees paid by Wells
Fargo that are provisionally assessed to the loan for bookkeeping purposes. In this
case, the fees were attorney’s fees and other costs paid by Wells Fargo to its
5
attorneys to review the Jacks’ bankruptcy plan and to prepare Wells Fargo’s proof
of claim.
The record reflects that the Jacks became aware of the proof of claim fees
when the Customer Account Activity Statement was sent to Sandra Jacks after she
called Wells Fargo to request the activity history on her account. The Customer
Account Activity Statement is the only document in evidence that lists the $310 in
fees. Sandra Jacks stated in her deposition she had never been billed for or asked
to pay the charges or told she would be expected to pay them. Similarly, Terry
Jacks testified Wells Fargo had never done anything to attempt to collect these
fees. Wells Fargo continued to send statements for the regular monthly payment
due under the mortgage and did not add any additional charges to these statements.
The bankruptcy court addressed the merits of the Jacks’ claim prior to
considering class certification and entered summary judgment for Wells Fargo on
all counts. The district court affirmed.2
II. DISCUSSION
2
At the district court, the Jacks’ case was consolidated with that of another set of
plaintiffs–Alan and Cynthia Isom. These cases originally remained consolidated on appeal to
this Court, however, this Court in March 2010 dismissed the Isoms’ appeal after concluding we
lacked jurisdiction.
6
The Jacks contend on appeal the district court erred in affirming the
bankruptcy court’s grant of summary judgment on: (1) their claims that Wells
Fargo violated the automatic stay provisions in 11 U.S.C. § 362; (2) their claims
that Wells Fargo violated 11 U.S.C. §506(b) and Bankruptcy Rule 2016 by failing
to disclose the fees; and (3) their objection to the proof of claim. “As the second
court of review of a bankruptcy court’s judgment, this court examines
independently the bankruptcy court’s . . . determinations” and employs the same
standard of review as the district court. In re Club Assocs., 951 F.2d 1223, 1228
(11th Cir. 1992) (internal quotation marks omitted). We review de novo an order
granting summary judgment. Id. at 1229.
A. Claims for Violations of the Automatic Stay
Upon the filing of a bankruptcy petition, 11 U.S.C. § 362(a) imposes,
subject to certain exceptions, an automatic stay of various acts that are attempts to
enforce prepetition claims or that would otherwise affect or interfere with property
of the estate or debtor. Collier on Bankruptcy, 16th ed., 3-362, ¶ 362.01. Section
362 “is one of the fundamental debtor protections provided by the bankruptcy
laws” because it “gives the debtor a breathing spell from his creditors,” “stops all
collection efforts, all harassment, and all foreclosure actions,” and “permits the
debtor to attempt a repayment or reorganization plan.” H.R. Rep. No. 95-595, at
7
340 (1978). The automatic stay also protects creditors by preventing a race for the
debtor’s assets and enabling an orderly liquidation process. Id.
The Jacks claim Wells Fargo violated three separate automatic stay
provisions: (1) section 362(a)(3), which prohibits “any act to obtain possession of
property of the estate or of property from the estate or to exercise control over
property of the estate;” (2) section 362(a)(5), which prohibits “any act to create,
perfect, or enforce against property of the debtor any lien to the extent that such
lien secures a claim that arose before the commencement of the case under this
title;” and (3) section 362(a)(6), which prohibits “any act to collect, assess, or
recover a claim against the debtor that arose before the commencement of the case
under this title.” Wells Fargo contends the Jacks cannot establish any automatic
stay violation because the mere recordation of charges on the Customer Account
Activity Statement is not an “act” in violation of the automatic stay.
We consider each of the Jacks’ automatic stay violation claims below, and
as to each claim, we affirm the grant of summary judgment in favor of Wells
Fargo.
1. Section 362(a)(3).
As stated above, 11 U.S.C. § 362(a)(3) prohibits “any act to obtain
possession of property of the estate or of property from the estate or to exercise
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control over property of the estate.” The Jacks claim Wells Fargo acted to protect
its security interest in the house–which was property of the estate prior to the
confirmation of the Jacks’ plan–by paying a law firm to file claims in the
bankruptcy case. According to the Jacks, these fees then became a lien on their
home by virtue of the terms of the mortgage. As such, the Jacks argue, Wells
Fargo acted to obtain possession of property of the estate or otherwise exercise
control over property of the estate.
As Wells Fargo points out, however, while the loan documents may give it
the right to modify the mortgage to include the fees at issue, there is no evidence
Wells Fargo has actually exercised this right by adding these fees to the loan
balance, nor is there evidence it has otherwise collected or attempted to collect the
$310 in bankruptcy-related fees. In fact, as Sandra Jacks testified, the monthly
statements sent by Wells Fargo after the filing of the bankruptcy petition reflected
only the normal payment due under the mortgage and did not include any
additional fees. The Jacks learned of the recordation of these fees only because
Sandra Jacks specifically requested a copy of the account history.
The mere recordation of fees incurred by Wells Fargo on its internal
records, without any attempt to collect these fees from the debtor or estate or to
modify the mortgage, is not an “act” in violation of § 362(a)(3). The First Circuit
9
reached this same conclusion in considering the claims of debtors who learned
through records obtained in a discovery proceeding that their mortgage lender had
posted bankruptcy-related fees to its internal records. See Mann v. Chase
Manhattan Mortg. Corp., 316 F.3d 1, 3 (1st Cir. 2003). As that court explained,
“unilateral accruals of amounts assertedly due, but in no manner communicated to
the debtor, the debtor’s other creditors, the bankruptcy court, nor any third party,
plainly are not the sort of ‘act’ Congress sought to proscribe.” Id.; see also Kerney
v. Capital One Fin. Corp. (In re Sims), 278 B.R. 457, 471 (Bankr. E.D. Tenn.
2002) (explaining that a creditor “could produce all kinds of paperwork which if
communicated to the debtor or a third party would violate the stay, but absent that
communication, some overt act, or resulting effect on the debtor, no violation has
occurred”). Neither possession nor control of the property was affected by Wells
Fargo’s entry of the fees on its internal records. Absent some other overt attempt
by Wells Fargo to recover these fees from the estate or to gain advantage over
other creditors, the entries on the Customer Account Activity Statement do not
constitute a violation of the automatic stay. We therefore conclude Wells Fargo
was entitled to summary judgment on this claim.
2. Section 362(a)(5).
10
The Jacks also claim Wells Fargo violated § 362(a)(5), which prohibits “any
act to create, perfect, or enforce against property of the debtor any lien to the
extent that such lien secures a claim that arose before the commencement of the
case under this title.” This claim suffers from the same deficiency as the Jacks’
claim under § 362(a)(3). While the Jacks may face potential future liability for the
charges under the terms of the mortgage, they have not offered any evidence that
Wells Fargo has actually undertaken any act to modify the lien. “[A] mere
potentiality of future liability reasonably cannot be considered the ‘creation’ of a
new and enlarged lien.” Mann, 316 F.3d at 4. As such, Wells Fargo was entitled
to summary judgment on this claim.
3. Section 362(a)(6).
Section 362(a)(6) prohibits “any act to collect, assess, or recover a claim
against the debtor that arose before the commencement of the case under this
title.” As an initial matter, we note some doubt over whether this section–which
applies to actions regarding pre-petition claims–applies to actions in connection
with fees that accrued post-petition. In any case, however, the Jacks’ claim under
§ 362(a)(6) fails for the same reason as their other claims for violations of the
automatic stay: Wells Fargo has not committed any “act” in violation of the stay.
11
Section 362(a)(6) “prevents creditors from attempting in any way to collect
a prepetition debt.” H.R. Rep. No. 95-595, at 342 (1978). As explained above,
Wells Fargo has not attempted to collect the proof-of-claim fees from the Jacks. It
has merely recorded on internal documents fees it incurred in association with the
Jacks’ account. It has not charged these fees against the Jacks’ account, added
them to the balance due on the mortgage, or communicated them to the Jacks in
any form that could be construed as an attempt to collect.3 Wells Fargo was
therefore entitled to summary judgment on this claim.
B. Claims Relating to Wells Fargo’s Failure to Disclose the Proof of Claim
Fees
The Jacks claim that district court erred in affirming summary judgment in
favor of Wells Fargo on their claims that Wells Fargo violated the Bankruptcy
Code and Rules by recording the fees without disclosing them. Specifically, the
Jacks contend Wells Fargo’s failure to disclose the postpetition fees violated
3
The Jacks cite to several bankruptcy court cases for the proposition that a creditor’s
placement of a charge on its books can amount to a violation of the automatic stay. Unlike the
facts here, those cases involved fees that had been charged to the balance on the debtor’s account.
See McCormack v. Fed. Home Loan Mortg. Corp. (In re McCormack), 203 B.R. 521, 524-525
(Bankr. D. N.H. 1996) (noting the fees had been added to the negative escrow balance and were
reflected in year-end statements and adjusted monthly mortgage payment amounts); Dean v. First
Union Mortg. Corp. (In re Harris), 280 B.R. 876, 883 (S.D. Ala. 2001) (noting the “major relief
to be accorded [the debtors] is to have the fee wiped off their account balances”) (emphasis
added). Here, there is no indication that the fees have ever been added to the balance of the
Jacks’ mortgage loan or otherwise “charged” to their account.
12
Section 506(b) of the Bankruptcy Code and Bankruptcy Rule 2016.4 The Jacks
seek both damages and injunctive relief.
Section 506 addresses the “Determination of secured status” on a creditor’s
claims. Subsection (b) provides:
To the extent that an allowed secured claim is secured by
property the value of which, after any recovery under
subsection (c) of this section, is greater than the amount of
such claim, there shall be allowed to the holder of such
claim, interest on such claim, and any reasonable fees,
costs, or charges provided for under the agreement or State
statute under which such claim arose.
Rule 2016(a) governs an “Application for compensation or reimbursement.”
It requires, “An entity seeking interim or final compensation for services, or
reimbursement of necessary expenses, from the estate shall file an application
setting forth a detailed statement of (1) the services rendered, time expended and
expenses insured, and (2) the amounts requested.” Bankr. Rule 2016(a).
According to the Jacks, these provisions promote the Bankruptcy Code’s
goal of giving debtors a “fresh start.” See Marrama v. Citizens Bank of Mass., 549
U.S. 365, 367; 127 S. Ct. 1105, 1007 (2007) (“The principal purpose of the
4
The Jacks also claim that Wells Fargo’s failure to disclose the fees in the proof of claim
violated Bankruptcy Rule 3001(f). This provision simply governs the evidentiary effect of a
properly filed proof of claim. The district court did not err in affirming the bankruptcy court’s
grant of summary judgment on this claim.
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Bankruptcy Code is to grant a fresh start to the honest but unfortunate debtor.”)
(quotation marks omitted). The Jacks claim this “fresh start” cannot be achieved,
however, if Wells Fargo or other similarly situated creditors may avoid disclosing
fees that could be treated as part of the arrearage claim payable through the
bankruptcy plan. In the absence of disclosure, a debtor might pay all the amounts
necessary to cure the arrearage only to emerge from bankruptcy to discover he is
facing additional fees he knew nothing about. See In re Watson, 384 B.R. 697,
707 (Bankr. D. Del. 2008) (“If the Court and Chapter 13 Trustee fully administer a
case through completion of a . . . Chapter 13 plan, only to have the debtor
promptly re-file on account of accrued, undisclosed fees and charges on her
mortgage, it could fairly be said that we have all been on a fool’s errand . . . .”).
The Jacks rely on a line of bankruptcy court decisions that, in varying
degrees, support the proposition that pursuant to § 506(b), Rule 2016, or both of
these provisions, a secured creditor must disclose and obtain court approval of
postpetition legal expenses. See, e.g., Jones v. Wells Fargo Home Mortg. (In re
Jones), 366 B.R. 584, 594 (Bankr. E.D. La. 2007) (concluding postpetition
charges that may be included in the debts necessary to cure a default under a
bankruptcy plan “must be disclosed and are subject to review by the bankruptcy
court for reasonableness”); Dean v. First Union Mortg. Corp. (In re Harris), 280
14
B.R. 876, 884 (Bankr. S.D. Ala. 2001) (concluding “creditors cannot obtain
postpetition/ preconfirmation fees from chapter 13 debtors without disclosure”).
Bankruptcy courts that have addressed the issue, however, have not uniformly
reached this conclusion. As Wells Fargo notes, at least one bankruptcy court has
concluded “whatever merits [] the policy arguments may have,” neither § 506(b)
nor Rule 2016(a) applies to a secured creditor who incurs postpetition legal
expenses chargeable to the debtor under the terms of the mortgage when the
creditor makes no attempt to obtain payment for these expenses during the
bankruptcy case. Padilla v. GMAC Mortg. Corp. (In re Padilla), 389 B.R. 409,
437-43 (Bankr. E.D. Penn. 2008).
Although we express no opinion as to the specific holdings in those cases,
we note many of the cases on which the Jacks rely involved creditors who had
actually collected or attempted to collect the undisclosed fees either during the
bankruptcy or upon discharge. See, e.g., Rodriguez v. Countrywide Home Loans,
Inc. (In re Rodriguez), 421 B.R. 356, 372 (Bankr. S.D. Tex. 2009) (noting the
mortgage holder “admits that it attempted to collect fees and expenses, which
accrued during the Plaintiffs’ cases, after the Plaintiffs had emerged from
bankruptcy” and that it “threatened foreclosure on account of the unpaid fees and
expenses” (footnote omitted)); In re Jones, 366 B.R. at 594 (noting the
15
undisclosed attorney’s fees “were unwittingly paid by Debtor through the
application of either Trustee payments or Debtor’s direct mortgage payments”).
Here, on the other hand, there is no evidence Wells Fargo has collected or
attempted to collect the fees during the pendency of the Jacks’ bankruptcy.
Assuming arguendo that § 506(b) and Rule 2016(a) require disclosure of
postpetition fees in some circumstances, we hold those provisions are not violated
when a creditor merely records costs it has incurred in association with a
mortgagee’s bankruptcy for internal bookkeeping purposes and makes no attempt
to collect the fees or otherwise add them to the debtor’s balance. Therefore, to the
extent the Jacks’ disclosure claims rely on events that have occurred during the
course of their Chapter 13 case, the district court did not err in affirming the
bankruptcy court’s order granting summary judgment in Wells Fargo’s favor.5
This conclusion does not entirely resolve the Jacks’ disclosure claims,
however, because the Jacks claim the failure to disclose the fees renders them
uncollectible at any point, including when their case is either discharged or
5
We note that the Jacks also raise the issue of whether the bankruptcy court erred in
determining § 105(a) could not be used to award damages for alleged violations of these
provisions. Because we find no violation of these provisions has occurred, we do not address the
parties’ arguments regarding the bankruptcy court’s authority to provide relief for these
violations, or the appropriate scope of such relief, pursuant to its § 105(a) powers.
16
dismissed. As such, in addition to requesting damages, the Jacks also requested an
injunction prohibiting Wells Fargo from collecting these fees in the future.
We do not reach these arguments because we conclude these claims are not
ripe for adjudication. “The ripeness doctrine raises both jurisdictional and
prudential concerns.” Cheffer v. Reno, 55 F.3d 1517, 1524 (11th Cir. 1995). “It
asks whether there is sufficient injury to meet Article III’s requirement of a case or
controversy and, if so, whether the claim is sufficiently mature, and the issues
sufficiently defined and concrete, to permit effective decisionmaking by the
court.” Id. In deciding whether a claim is ripe, we consider: “(1) the fitness of the
issues for judicial decision, and (2) the hardship to the parties of withholding court
consideration.” Id. (citing Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S. Ct.
1507, 1515 (1967). A claim is not ripe when it is based on speculative
possibilities. Bowen v. First Family Fin. Servs., Inc., 233 F.3d 1331, 1341 n.7
(11th Cir. 2000).
Here, we do not know whether the Jacks’ bankruptcy will end in a discharge
or a dismissal. We note that Wells Fargo represents on appeal that it will not seek
to collect the charges if the Jacks successfully complete their Chapter 13 plan and
receive a discharge. Although we are “reluctant to accept mere bald assurances
. . . it cannot be said with any confidence that [Wells Fargo’s] collection efforts are
17
inevitable.” See Mann, 316 F.3d at 6 n.8. In addition, we note that an attempt to
collect the undisclosed fees post-dismissal may present legal issues distinct from
those raised by an attempt to collect post-discharge.6 Therefore, to the extent the
Jacks’ claims are based on events that may take place in the future, these claims
are dismissed for lack of jurisdiction. See, e.g., Greenbriar, Ltd. v. City of
Alabaster, 881 F.2d 1570, 1574 n.7 (11th Cir. 1989) (“[R]ipeness goes to whether
the district court had subject matter jurisdiction to hear the case.”).
C. Objection to the proof of claim
Finally, the Jacks contend the bankruptcy court erred in granting summary
judgment in Wells Fargo’s favor on their objection to the proof of claim. Section
502 governs the “Allowance of claims or interests.” Section 502(a) makes clear,
“A claim or interest, proof of which is filed under section 501 . . . is deemed
allowed, unless a party in interest . . . objects.” Section 502(b)(1), the provision
on which the Jacks rely, provides that if an objection is made, the court should
determine the amount of the claim and “shall allow such claim in such amount,
except to the extent that [] such claim is unenforceable against the debtor and
6
For example, Wells Fargo argues the Jacks would not be entitled to the “fresh start”
afforded by the Bankruptcy Code if they fail to fully comply with their bankruptcy plan and the
case is dismissed pursuant to 11 U.S.C. § 349. See 11 U.S.C. 349(b); S. Rep. No. 95-989, at 49
(“The basic purpose of [this] subsection is to undo the bankruptcy case, as far as practicable, and
to restore all property rights to the position in which they were found at the commencement of
the case.”).
18
property of the debtor, under any agreement or applicable law for a reason other
than because such claim is contingent or unmatured.” The bankruptcy court
concluded Wells Fargo’s failure to disclose fees in the proof of claim was not a
valid basis for an objection. Because the amount claimed in the proof of claim did
not actually include the allegedly improper proof of claim fees, the bankruptcy
court concluded, there was nothing in the proof of claim for the Jacks to object to.
We agree Wells Fargo’s failure to include the proof of claim fees on the
proof of claim does not provide a valid basis for an objection. Under § 502(b)(1),
a claim asserted in a proof of claim is allowed in the amount asserted “except to
the extent that [] such claim is unenforceable.” “Such claim” refers to the claim
actually asserted on the proof of claim. As to this amount–in this case,
$162,205.57–the Jacks have identified no reason why such amount is
unenforceable. Wells Fargo was therefore entitled to summary judgment.
III. CONCLUSION
To the extent the Jacks’ claims are based on events that have occurred
during the pendency of their bankruptcy, we hold that Wells Fargo was entitled to
summary judgment in its favor on these claims. To the extent the Jacks premise
claims on events that have not yet occurred, we conclude these claims are not ripe,
and we dismiss them.
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AFFIRMED in part and DISMISSED in part.
20